'Mirror' wills misunderstanding

My brother and his wife have had 'mirror' wills drawn up after meeting a will adviser.

Avoid misunderstanding: Wills should be drawn up by a solicitor

They have told me the will states that if one of them dies and the surviving spouse has to go into a home, the house cannot be sold to pay for the fees.

I have never heard of this kind of will and am worried that they have been given incorrect information.

Mrs J. C., Liverpool.

Margaret Stone, the Daily Mail's Money Doctor, replies: The first thing that springs immediately to mind is that not only should everyone make a will, but that it should also be drawn up by a solicitor, to avoid any misunderstandings.

'Mirror wills' are simple enough. It is a common expression used when a husband and wife each make virtually identical wills.

For example, Mr J's will might say: 'I give everything to my wife on death, but if she dies before me it goes to the children.' Mrs J's will would say: 'I give everything to my husband, but if he dies before me it goes to the children.'

What mirror wills do not do is to ensure, after the death of the first spouse, that the family home does not have to be sold to meet any nursing home fees of the surviving spouse. However, you can use a will to protect against a claim from the local authority for such fees — provided you change the form of ownership of the family home.

Most couples own their house as joint tenants, which means the house ownership in its entirety automatically passes to the surviving spouse.
If, when a will is drawn (or before), the joint tenancy is severed and replaced by 'tenants in common', then it is possible for each partner to leave his/her share of the family home to someone else, such as the children.

Usually a trust is used to safeguard the remaining spouse's right to live in the house — but in reality, the owners of the other half would find it difficult to dislodge him/her from the other half of which they are the outright owner.

So if the surviving spouse has to go into a home, the local authority can only assess the market value of his/her share of the house, which will not be high — not the other half, which belongs to someone else.